Brooks v. Shaw

• Decision Date: 27 February 1908
• Parties: BROOKS v. SHAW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 376

84 N.E. 110

BROOKS v. SHAW et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1908

COUNSEL

Arthur H. Brooks, for plaintiff.

William R. Buckminster, for defendants.

OPINION

RUGG J.

The defendants first seek to raise questions as to the competency of an interrogatory, which they were compelled to answer. The plaintiff objects that this is not open. The record discloses that the matter first came before a justice of the superior court, who ordered that the defendants be defaulted on September 27th, unless the interrogatory should before that date be answered. The defendants thereupon claimed an exception to said order. Thereafter, the answer not being satisfactory nor full, a motion was made before another justice of the superior court, who entered and order requiring the defendants to further answer. The defendants took a verbal exception to this order. Another incomplete answer having been filed by the defendants on November 1 1906, a third justice of the superior court ordered that a further answer be filed, and to this order an exception was taken. Thereafter the cause proceeded to trial before the justice who made the first order, and the only bill of exceptions was allowed by him on the 11th day of May, 1907. Upon this record no exception respecting the interrogatories is before us. The statute governing this question is Rev Laws, c. 173, § 106, and rule 44 of the superior court. The material part of the rule is: 'Exceptions allowed in the trial of a civil case shall be reduced to writing and filed, * * * within twenty days after the verdict or finding in the case in rendered, or after the opinion, ruling, direction, or judgment excepted to in a case not on trial is given, unless for cause shown further time is allowed by the court.' It does not appear that any further time was allowed for filing exceptions in this case. The orders excepted to were made by three different justices of the superior court. It is irregular and improper to embrace in a single bill exceptions taken at different stages of the case before different magistrates. The only provision for an allowance of exceptions by any other than the justice before whom they are taken is in the case of disability, death or resignation, as provided in Rev. Laws, c. 173, § 108. Moreover, the rule requiring the exceptions to be filed within 20 days after the ruling or direction excepted to was not complied with as to any of these orders to answer interrogatories. Where exceptions are taken to interlocutory orders, the only course open, conformable to the statute and rule, is for the aggrieved party to file his bill of exceptions and have it allowed by the justice of whose act he complains. When the case is ripe for final judgment, or in a condition to be finally disposed of in the superior court if the exceptions are overruled, then all bills of exceptions filed both as to interlocutory and final matters, are to be entered in the full court. Safford v. Knight, 117 Mass. 281; Lowd v. Brigham, 154 Mass. 107, 26 N.E. 1004. The general practice has been in conformity with this view. Spinney v. Boston Elevated Ry., 188 Mass. 30, 73 N.E. 1021; Toland v. Paine Furniture Co., 179 Mass. 501, 61 N.E. 52; Hancock v. Franklin Ins. Co., 107 Mass. 113; Robbins v. Brockton St. Ry. Co., 180 Mass. 51, 61 N.E. 265; Soebel v. Boston Elevated Ry. Co., 196 Mass. ----, 83 N.E. 3.

The trial court found that for a period of many years prior to September 1, 1904, one M. M. Sawin carried on an express business between Boston and Cambridge under the name of 'Sawin's Express,' and that Herbert E. Sawin was assistant manager. The defendants acquired the business in September, 1904, and continued to carry it on under the name of 'Sawin's Express' in the same manner in which it had been carried on before, without change in the name lettering on wagons, or billheads, and Herbert E. Sawin was continued as the agent at Cambridge in charge of the business. In November, 1905, a dress belonging to the plaintiff was lost while being transported by Sawin's Express from Boston to Cambridge, it having been received from the consignor on a contract limiting liability in case of loss to $50. The defendants were unable to find the package, and Herbert E. Sawin in a conversation with an agent of the plaintiff said, in substance, that he...